REASONABLENESS

1. Introduction

The legal career entails the application of high standards of thinking in order to solve legal problems. Various branches of the law have a certain standard that needs to be adhered to so as to formulate a logical thought towards a solution. This phenomenon is based on the fact that every solution under law needs to be backed by proper evidence. Reasonableness came about because of the fact that in law everything needs to be well thought out and backed by a solid analysis. The process of deducing thought up to the point of arriving at a conclusion is what can be described as reasonableness.

Due to the diversity of legal practitioners, the standard of application varies from one person to another. Over the years there have been diverse applications of the term reasonableness. One school of thought deems reasonableness as a criteria used for interpreting information as one seeks to arrive at a certain conclusion. Another school of through views reasonableness as a means to assess the conduct and mode of operation of individuals. Lastly reasonableness can also be viewed from the point of it coming second as a way of assessing the actions of a body. From the various school of thoughts highlighted above, it is quite obvious that the main branches are private and public law.

Based on the foregoing, this essay focuses on the public law aspect of reasonableness which provides an assessment of how public body which includes the judiciary deduces its decisions.

2. Public Law – Reasonableness

This specific aspect of reasonableness shall revolve around issues of constitutional law and human rights law. As such, the government through judiciary, executive and legislature normally implements certain decisions that affect the public. Under public law, reasonableness comes as a second avenue where it is used to weigh and see if the acts of the public body are legitimate. That is why there is involvement of constitutional law which leads to judicial review of the decisions. In light of the foregoing, it would be prudent to indicate that it is the judiciary that does most of the actions of reasonableness.

As a result of the judiciary being involved in the process of reasonableness, jurisprudence has grown exponentially over the years. The courts have been given the mandate to employ the standard for reasonableness depending on the facts tabled.  In applying the said standards that lead to reasonableness, the courts follow certain criterion that involves rationality, consistency, equality and proportionality. This essay shall further focus on this criterion as a way of getting the real understanding of reasonableness as per public law.

In this sense, reasonableness might serve as a cue for the need to ensure all tests are well balanced. Furthermore, reasonableness is the proper mode of thinking about any government action that is unconventional. Administrative law precludes parties from carrying out activities that depict the full doctrine of reasonableness. Proper understanding of the reasonableness phenomenon aids in getting things of the ground. It is expected that politics will try to meddle with the thought process of arriving at the reasonableness. Lastly reasonableness can also be viewed from the point of it coming second as a way of assessing the actions of a body. From the various school of thoughts highlighted above, it is quite obvious that the main branches are private and public law.

2.1 Rationality

While employing reasonableness of a certain decision made by a public body, the court will look at the rationality of the decision. For instance does the decision make the situation good or bad. It is only through getting the rationale of the decision that the court can understand the reasonableness of the decision. Furthermore it is rationality that leads the court to the conclusion on whether the decision was legitimate. Rationality is focused on understanding the efficiency of means to an end. At this point the court is goal-oriented.

2.2 Consistency

Reasonableness seeks to interrogate whether the particular action or decision is up to standard with the norm. In the event all factors remain constant then decisions made by the government the test would have been passed. While applying the test of consistency, the courts will evaluate the rationale of the decision and whether it has legitimate basis. This process of determination requires the court to interrogate the string of decisions involving that particular subject right from the start.

2.3 Equality

From time immemorial, reasonableness and equality have a strong bond. It has always been used as a constitutional standard in the determination of the control on the justification of legislative classifications. Equality always brings out the effect of the particular decision being interrogated on various avenues of fundamental rights. Reasonableness applies when one attempts to strike a balance between the fundamental rights at stake and the rationale for the decision. However this tends to vary from one jurisdiction to another. There is no one fit all standard that can be adopted by all. Reasonableness based on equality varies on a case by case basis because circumstances keep changing.

2.4 Proportionality

This aspect is applied selectively from jurisdiction to jurisdiction. For example in Germany it is applied in a very strict manner. The aim is to ensure the standards of reasonableness are maintained with high levels of integrity. In exercising jurisdiction, suitability together with necessity shall be the guiding light to attaining reasonableness. Practice dictates that the standard of proportionality is determined by the balance between the doctrine of human dignity and content of fundamental human rights. Germany has been on the forefront in applying proportionality to get results for situations of limited intensity.

Having highlighted in depth the various aspects of attaining reasonableness under public law, this essay proceeds to focus on comparative jurisdictions across the globe. This is aimed at getting a world view of how different nations approach the reasonableness phenomenon. Most jurisdictions have a common foundation of applying the balancing test in every scenario that requires application of reasonableness. The role played by reasonableness is quite big since it involves fundamental rights and implications which have a ripple effect on the greater population. It is therefore important that reasonableness depicts high levels of balancing.

3. Comparative Analysis

3.1 United Kingdom  

As a way of handling present and future cases, the courts in the United Kingdom have developed a standard test for reasonableness. This test tends to apply to all matters involving judicial review of government directives and any other issue involving public bodies. This test has been termed as ‘Wednesbury unreasonableness’ standard. It was developed during the times when the Supreme Court of the United Kingdom was dealing with the Associated Provincial Picture Houses Ltd v. Wednesbury Corp (1974) (UK) case. The rationale behind this test is to seek proof that questions the absurdity of a government decision which would utterly be impossible for a sensible person to make. The introduction of this test has seen the recent development of jurisprudence since all that is required is the invoking of Wednesbury unreasonableness standard. The courts in the United Kingdom have reviewed numerous decisions made by government officials. Numerous reviews of the decisions went through because the standard set by the Supreme Court was upheld without fail.

3.2 United States

United States Supreme Court tends to lean towards a more intense test other than one relying heavily on rational. Unlike other jurisdictions, the United States constitution has various stringent provisions touching on the concept of human rights. This is visible because reasonableness is considered as a standard for the judicial review of legislative classifications. Based on the foregoing this essay seeks to submit that the unique approach taken the United States court tends to depart from the norm by placing the burden on the entity or person challenging the legislative decision affecting constitutional rights. This subjects the whole matter to strict scrutiny where issues to with foundational freedoms are analyzed. This is the freedom of expression and freedom of association. In Brown v Board of Education for Topeka Case (US) (1954) the court clearly implied that the scrutiny aimed at achieving reasonableness, does not vary from case to case. The court preferred to make a standard approach.

While employing reasonableness of a certain decision made by a public body, the United States Court will look at the rationality of the decision. For instance does the decision make the situation good or bad. It is only through getting the rationale of the decision that the United States Court can understand the reasonableness of the decision. Furthermore it is rationality that leads the court to the conclusion on whether the decision was legitimate. Rationality is focused on understanding the efficiency of means to an end. At this point the court is goal-oriented.

It is time to embrace reasonableness which will open endless possibilities. Courts are increasingly moving away from the rigid standard of testing reasonableness. There is another way that is a way that works elsewhere in the legal sector which includes the constitution. The courts require a standard of reasonableness which can also be applied.

3.3 Italy

Of all the mentioned jurisdictions, Italy has totally embraced the concept of reasonableness. The Constitutional Court of Italy leads at the fore front by exercising the principal of equality when dealing with a matter requiring reasonableness. This has led to the formulation of various laws that affirm equality for all citizens. It is through such a pace set by the Constitutional court that all other courts follow suit. In arriving at a decision the court scrutinized the end and means of certain legal provisions.  Such an approach creates a fusion of the descriptive line of thought which is supported by a constructive approach. The court ensures all manner of decorum has been applied as it works towards attaining the set reasonableness standard.

A closer look at most of the decisions brought before the Constitutional court will depict the attempt by court to interpret reasonableness along the same lines as rationality. There is no room for contradictions and hypotheses. Reasonableness is strictly applied so as to avoid a miscarriage of justice.

There has long been handwringing in academia regarding the possibility that “the rules governing judicial review have no more substance at the core than a seedless grape.” This leads to serious questions on whether they make any sense. The various standards of arriving at reasonableness are doing greater harm than good. The end might be the same but the game is played differently. There are many areas of law that both depend upon a reasonableness standard and that no one thinks they are lawless.

In interrogating whether the legislative decision is reasonable or not, the court will rely on the following factors for guidance:-

1. a) The extent to which the measures taken were deliberate, concrete and targeted towards the fulfillment of economic, social and cultural rights.
2. b) The time frame in which the decision was implemented
3. c) Whether the state party exercised its discretion in a non-discriminatory manner
4. d) Where several policy options are available, whether the State party adopted the option that least interferes with fundamental rights
5. e) Whether the steps taken had factored in the precarious situation of marginalized groups or individuals.

All these factors aid the court in gauging whether the decision made is rational and/or reasonable. However not all instances would require full intervention of all the factors mentioned above. In each of these well-established areas of law, reasonableness has become
the core doctrine. It affords lawyers and judges, not to mention juries, the
opportunity to make and specify law in particular contexts and permits the
application of community standards to controversial conduct.

Conclusion

Yet reasonableness is not so unpredictable as to make planning impossible. To
be sure, reasonableness has always had its critics. It has been branded as
too unspecific, and there is a vigorous jurisprudential debate about what,
precisely, it means. But as the resilient legal system has shown time and
again, reasonableness may enable the constitution of a standardized,
coherent, and rich corpus of law premised on broad flexibility for
decisionmakers, real jurisdictional and procedural constraints, and the
power to use precedent to give content to and specify the broad meaning of
the rule of reason.

While employing reasonableness of a certain decision made by a public body, the court will look at the rationality of the decision. For instance does the decision make the situation good or bad. It is only through getting the rationale of the decision that the court can understand the reasonableness of the decision. Furthermore it is rationality that leads the court to the conclusion on whether the decision was legitimate. Rationality is focused on understanding the efficiency of means to an end. At this point the court is goal-oriented.